Search Warrants: Laws & Limitations

Police officers must obtain a search warrant, an order issued by a judge, before searching a citizen’s home or property. This order officially authorizes a search for specific items at a fixed location during a set time.

Obtaining a Search Warrant

In order to obtain a search warrant, police officers must convince a judge that “probable cause” of criminal activity at the place exists. Typically, officers provide affidavits, information in the form of written statements given under oath based upon observations and experiences of the police officers themselves, public citizens, or police informants. If the affidavits convince the judge that there is indeed probable cause of illegal activity, he will issue a search warrant.

The Limitations of Search Warrants

Police officers’ searches are limited by the scope of the warrant. They can only search the specific location listed in the warrant, but they may be able to seize other items not listed on the warrant if they come upon contraband or evidence of a crime not listed in the warrant during the lawful search.

If officers have a warrant to search an individual, they can only search that specific person. Officers may not search onlookers without specific, independent probable cause of additional criminal activity. Even if they have reasonable suspicion that an onlooker is somehow engaged in criminal activity, officers may only question the onlooker. If an officer’s safety is in question, the officer may conduct a frisk for weapons but nothing more.

Situations in which Warrants are Not Necessary

The majority of searches actually occur legally without a search warrant because the courts have determined that a warrant is not necessary. These warrantless situations include the following circumstances: consent searches, items in plain view, searches made in conjunction with an arrest, or emergency exceptions.

Consent Searches

If the person who has control over the location gives police permission to search the premises, no warrant is necessary and any evidence found during the search is admissible in court. This can become a tricky situation because landlords and hotel operator cannot give permission for a search in a leased or rented space, but employers can give permission for searches in work spaces that not deemed private, such as clothing locker.

The Plain View Doctrine

Officers do not need a warrant to seize items “in plain view.” For example, marijuana growing outside that is seen from a helicopter, contraband sitting on the front seat of a car, or a weapon sitting on the kitchen table while the officer is legally in your home can all be legally seized without a warrant.

Searches in Conjunction with an Arrest

If a suspect is arrested, police can legally search the suspect for weapons to protect themselves and do a cursory visual inspection of the premises. These searches are protective measures, but anything found during these searches can legally be admissible as evidence.

Emergency Exceptions

In general, police officers can conduct warrantless searches if waiting for a warrant will pose a threat to the public since an officer’s duty is to protect the public and to serve justice and the community. This rule can also apply to situations when waiting to a warrant could lead to the loss of important evidence.

If an individual is ever concerned about the propriety of a warrantless search, it is best to clear voice his lack of consent and then stand aside. Let officers conduct the search and fight the legality in court rather than to face addition charges.

The above article was courtesy of Sharp & Driver, Attorneys at Law. Matt Sharp and Mike Driver are criminal defense attorneys located in Houston, TX.